HKSAR v. YIU WING SHAN

CACC 84/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 84OF 2017

(ON APPEAL FROM HCCC NO. 52 OF 2016)

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J U D G M E N T

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1.  The applicant, who appears in person having been refused the grant of legal aid on 24 May 2017, seeks leave to appeal against the total sentence of 6 years and 6 months’ imprisonment imposed on her on 27 March 2017, by Madam Justice Campbell-Moffat following her conviction on her pleas of guilty to possession of 13.2 grammes of methamphetamine hydrochloride (“Ice”) on 16 August 2015, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (Count 1) and one count of trafficking unlawfully on 7 October 2015 in 26.2 grammes of Ice, contrary to section 4(1)(a) and (3) of the same Ordinance. Count 1 alleged that the applicant had unlawfully trafficked in 13.2 grammes of Ice. However, the prosecution accepted a plea of guilty to the lesser offence of possession of those dangerous drugs.

The facts

2.  Shortly after midnight on 16 August 2015 the applicant was intercepted by a police officer in Argyle Street.  A search of a re-sealable plastic bag wrapped in tissue, which she was holding, revealed the presence of the 13.2 grammes of Ice the subject of Count 1.  It had an estimated retail value of $4,442.  Having been arrested and cautioned the applicant said “It is cheaper for me to buy it at one time.  I bought it for $1,500 for my own consumption.”  Subsequently, she was released on police bail.

3.  In the early evening of 7 October 2015 the applicant was intercepted by police officers on the ground floor of a building in Lower Wong Tai Sin Estate.  A search of the applicant’s handbag revealed the presence of a plastic bag containing 26.2 grammes of Ice. It had an estimated retail value of HK$8,658.  Having been arrested and cautioned, the applicant said “I help Ah Wing to deliver the dangerous drug Ice to someone in Lower Wong Tai Sin Estate, with intention of earning $500.  Give me a chance.”

4.  In a subsequent video recorded interview, the applicant said that, as a drug abuser herself, she knew that the substance was Ice.  Ah Wing had told her that the plastic bag contained 28 grammes of Ice and asked her to deliver it to a place in Wong Tai Sin, where it was to be collected by another person.  He promised her a reward of $500, which she was yet to receive.

Background and mitigation

5.  The applicant was 20 years of age at the time of the offences and 21 years of age at the time that she was sentenced.  She was single and lived with her mother.  She had seven criminal convictions arising from five separate appearances in court in and between 2009 and 2013.  Those convictions were in respect of offences involving dangerous drugs or dishonesty.  On 12 August 2013, the applicant was convicted of two offences of possession of dangerous drugs and an offence of possession of equipment fit and intended for abusing dangerous drugs.  She was ordered to be detained in a Drug Addiction Treatment Centre (“DATC”).  On 9 September 2013, she was convicted of another offence of possession of dangerous drugs and the same order made.  It was acknowledged in mitigation that having been released from DATC she had been recalled twice and had last been released from DATC in June 2015.  The primary mitigation advanced was that the applicant had pleaded guilty.

Reasons for sentence

Count 1

6.  In sentencing the applicant, having stated that “the guideline authority for simple possession of Ice is HKSAR v Mok Cho Tik” ^[1], the judge stipulated a starting point for sentence for Count 1 of 12 months’ imprisonment.  Then, having regard to the latent risk that the applicant would share the dangerous drugs with others or sell it to others, the judge said:

“ …you had only recently been released from DATC and had no real income other than the suggestion that you distributed leaflets for HK$3,000 to HK$4,000 a month.”

In the result, the judge said that to reflect the latent risk she enhanced the starting point taken for sentence by 6 months’ imprisonment.  In addition, the judge enhanced sentence by a further 3 month imprisonment having regard to “your recent release for exactly the same type of offending and your attitude to the DATC disposal for which you were recalled twice.”

Count 2

7.  Having said that the “guideline authority” for unlawfully trafficking in Ice is HKSAR v Tam Yi Chun ^[2], the judge said that unlawfully trafficking in 26.2 grammes of Ice fell in the band of between 10 and 70 grammes, for which the range of sentence was 7 to 11 years’ imprisonment.  Then, the judge said that the appropriate starting point to be taken for sentence after trial would be “just over” 8 years’ imprisonment.  However, she went on to say that an aggravating factor in the commission of the offence was the fact that it had been committed whilst the applicant was on police bail, for the offence the subject of Count 1.  In the result, the judge said that she enhanced sentence by 3 months’ imprisonment.

Discount of sentence

8.  Having noted that the offences the subject of the two counts had been committed before delivery of the judgment of the Court of Appeal in Abdou Maikido Abdoulkarim^[3], the judge said that the applicant was entitled to a discount of one-third from that taken as the starting points for sentence.

Sentence

9.  The judge sentenced the applicant to 14 months’ imprisonment on Count 1 and to 5 years and 4 months’ imprisonment on Count 2.

10.  Having noted that the offences “were two wholly separate offences, the first taking place just weeks after your release from DATC, the second whilst on police bail for the first” the judge ordered that the sentence of imprisonment imposed on Count 2 be served wholly consecutively to the sentence of imprisonment imposed in respect of Count 1.  Then, she ordered that the applicant “…will go to prison for a total of 6 years and 6 months.”

Grounds of appeal against sentence

11.  Attached to Form XI, by which the applicant gave notice to the Court on 30 March 2017 of her application for leave to appeal against sentence, was a hand written note in which the applicant asserted simply that she applied for leave to appeal against sentence.

12.  Today, in her oral submissions, the applicant said that she would now like to advance a claim that part of the dangerous drugs in her possession, the subject of Count 2, was for her own consumption.  She was a drug user.  She acknowledged that she was represented by counsel at sentencing but said that, since he was an expatriate counsel, she had to rely on interpretation and there had not been enough time to communicate her instructions.  However, she acknowledged that in the Summary of Facts, which had been interpreted to her in court during the sentencing hearing, she had admitted in terms that she was trafficking in the dangerous drugs the subject of Count 2. Further, she accepted that in her oral response having been arrested and cautioned she had said “I help Ah Wing to deliver the dangerous drug ice to someone in Lower Wong Tai Sin Estate, with intention of earning $500.  Give me a chance.”  Finally, she accepted that there had been no reference to an element of self‑consumption of part of the dangerous drugs in the lengthy mitigation advanced on her behalf by counsel.

The respondent’s submissions

13.  In his written submissions for the respondent, Mr Ira Lui invited the Court to refuse the application for leave to appeal against sentence.  The sentence imposed on the applicant was neither wrong in principle nor manifestly excessive.

Count 1

14.  Mr Lui submitted that the normal starting point for sentence for possession of a quantity of dangerous drugs possessed by a bona fide user was in the range of 12 to 18 months’ imprisonment.^[4]  He invited the Court to note that the applicant had three convictions for possession of dangerous drugs and one conviction for the possession of equipment fit and intended for smoking dangerous drugs.  Also relevant to a determination of the appropriate starting point was the fact that the applicant had been released from DATC in June 2015, shortly before the commission of the offence the subject of Count 1.  So, he submitted that the judge would have been entitled to have taken a higher starting point for sentence than that which was at the bottom of the range stipulated by this Court.

Latent risk

15.  Mr Lui submitted that, given that the judge had noted the low income which the applicant claimed she earned, together with the fact that the applicant had been arrested for the offence the subject of Count 1 whilst she was in the street, rather than at home, the judge would have been justified in enhancing the starting point to reflect the latent risk by 9 to 12 months’ imprisonment.

16.  Having regard to those circumstances, he submitted that the sentence of 14 months’ imprisonment imposed on the applicant was not wrong in principle nor manifestly excessive.

Count 2

17.  Mr Lui accepted that the starting point articulated by the judge in respect of Count 2 was within the range of the judge’s discretion.  He submitted that the judge was correct to determine that the fact that the offence was committed whilst the applicant was on bail for the offence the subject of Count 1 is “a seriously aggravating factor in the commission of an offence.” ^[5]  Mr Lui submitted that the enhancement of sentence by the judge of 3 months’ imprisonment was “modest and not open to valid criticism.”

18.  Mr Lui invited the Court to note that the sentence of 5 years and 4 months’ imprisonment, which the judge imposed on the applicant for Count 2, was imposed in arithmetic error, the judge having determined that the enhanced starting point for sentence was 8 years and 3 months’ imprisonment and that the discount to be afforded to the applicant was one-third.  The sentence that the judge ought to have imposed on the applicant was 5 years and 6 months’ imprisonment.  The judge acknowledged as much in a subsequent judgment in which she declined to exercise her power to amend her order pursuant to the ‘Slip rule’.^[6]  The prosecution had first alerted the judge of the error by letter dated 31 March 2017.

Totality

19.  Mr Lui submitted that the factors relevant to the determination of whether or not it was appropriate to order that part or all of the sentence of imprisonment imposed for a subsequent offence should be made consecutive to a sentence imposed for an earlier offence were identified in the judgment of this Court in HKSAR v Ngai Yiu Ching^[7]. He invited the Court to have regard to the fact that the two offences were both serious in nature and that there was no connection whatsoever between the commission of the offences, which were separated by 1½ months in time and were committed at different locations.  Further, he contended that the applicant’s persistence in committing drug-related offences added to the seriousness of the commission of the offences.  In the result, he submitted that the judge was entitled to order that all of the sentence of imprisonment imposed in respect of Count 2 be served consecutively to the sentence of imprisonment imposed in respect of Count 1.

A consideration of the submissions

20.  Mr Lui is correct that, having determined that it would have been appropriate to impose an enhanced starting point for sentence after trial of 8 years and 3 months’ imprisonment and that the applicant was to be afforded a one-third discount, the judge fell into error in imposing a sentence of 5 years and 4 months’ imprisonment for Count 2.  A correct application of the stated approach taken by the judge to sentence would have resulted in the imposition of a sentence of 5 years and 6 months’ imprisonment.  It is regrettable that counsel for the prosecution, as was his duty, did not point out that error at the time of sentencing.  In the course of sentencing the applicant, the judge had identified the enhanced starting point taken for sentence several minutes before she actually imposed sentence.  At the outset of sentencing the judge had stated that the applicant was entitled to a discount of one-third for her pleas of guilty.  The arithmetic calculation was simplicity itself, the enhanced starting point for sentence was 99 months’ imprisonment and the discount afforded was one-third.

Count 1

21.  I am satisfied that Mr Lui is correct to suggest that the starting point of 12 months’ imprisonment stipulated by the judge for Count 1 was lenient having regard to the amount of Ice.  Nevertheless, it fell within the judge’s discretion.  Similarly, I am satisfied that the enhancement of 6 months’ imprisonment that the judge stipulated to reflect the latent risk factor and the further enhancement of 3 months’ imprisonment, to reflect the fact that the applicant committed the same type of offence shortly after having been released from DATC, fell within her discretion.  Certainly, in my judgment it is not reasonably arguable that the enhanced starting point of 21 months’ imprisonment was manifestly excessive or wrong in principle.

Count 2

22.  I am satisfied that the starting point for sentence stipulated by the judge of 8 years’ imprisonment for Count 2 was entirely appropriate.  Clearly, the judge was entitled to treat as an aggravating factor, as she did, the fact that the offence the subject of Count 2 was committed whilst the applicant was on bail for the offence the subject of Count 1.  That remains the case although bail was granted by the police, rather than by a court.^[8]  The enhancement of the starting point of 3 months’ imprisonment stipulated by the judge was well within her discretion.

Totality

23.  In sentencing, the judge was correct to observe of the two offences that “these were two wholly separate offences”.  As Mr Lui pointed out, the two offences were committed 1½ months apart in time and in two different locations.  They were entirely separate offences.  So, in principle it was appropriate to impose consecutive sentences.  But, before doing so it was necessary to assess whether the totality of sentence reflected the applicant’s culpability.  Having regard to those considerations, I am satisfied that it is not reasonably arguable that the judge erred in making the order she did as to consecutive sentences.

24.  Clearly, the new claim made today by the applicant that part of the dangerous drugs the subject of Count 2 was for self-consumption is wholly inconsistent with the basis on which the applicant tendered her plea of guilty, as reflected in the Summary of Facts and in mitigation advanced on her behalf.  She was represented by Mr Kelly, a very experienced barrister.

Conclusion

25.  For the reasons that I have given, I am satisfied that there are no reasonably arguable grounds of appeal against the sentences imposed on the applicant.  In the result, I refuse the application for leave to appeal against sentence.

26.  The applicant is advised that she has the right to renew her application for leave to appeal against sentence to the Full Court but is informed that if she does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of her application shall not be reckoned as part of the term of her sentence.